United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
has filed this action challenging the final decision of the
Commissioner of Social Security denying plaintiffs claims for
disability insurance benefits and supplemental security
income benefits under the Social Security Act, as amended, 42
U.S.C. §§ 416(i) and 423, and 42 U.S.C. § 1381
et sea., respectively. Jurisdiction of this court is pursuant
to 42 U.S.C. § 405(g) and 42 U.S.C. § 13 83(c)(3).
As reflected by the memoranda and argument submitted by the
parties, the issues now before the court are whether the
Commissioner's final decision is supported by substantial
evidence, or whether there is "good cause" to
necessitate remanding the case to the Commissioner for
further consideration. See 42 U.S.C. § 405(g).
plaintiff, Edwina Basham Viar, was born on August 17, 1962.
While Mrs. Viar did not complete high school, she has earned
a GED. Plaintiff has worked as a sales clerk, cashier
supervisor, stock clerk, and sales representative. She also
worked for a short period of time as a hotel maid. Mrs. Viar
last worked in 2012. On November 16, 2012, plaintiff filed
applications for disability insurance benefits and
supplemental security income benefits. Mrs. Viar alleged that
she became disabled for all forms of substantial gainful
employment on August 21, 2012 due to musculoskeletal
problems, depression, anxiety, and hip problems. Plaintiff
now maintains that she has remained disabled to the present
time. As to her application for disability insurance
benefits, the record reveals that Mrs. Viar met the insured
status requirements of the Act through the fourth quarter of
2014, but not thereafter. See gen,, 42 U.S.C. §§
416(i) and 423(a). Consequently, plaintiff is entitled to
disability insurance benefits only if she has established
that she became disabled for all forms of substantial gainful
employment on or before December 31, 2014. See gen,, 42
U.S.C. § 423(a).
Viar's applications were denied upon initial
consideration and reconsideration. She then requested and
received a de novo hearing and review before an
Administrative Law Judge. In an opinion dated January 26,
2015, the Law Judge also determined that plaintiff is not
disabled. The Law Judge found that Mrs. Viar suffers from
several severe impairments, including osteoarthritis;
hepatitis C; chronic generalized pain disorder/fibromyalgia;
major depression; and anxiety disorder. (TR 20). Because of
these problems, the Law Judge ruled that plaintiff is
disabled for all her past relevant work roles. (TR 30).
However, the Law Judge held that Mrs. Viar retains sufficient
functional capacity for a limited range of light exertional
activity. The Law Judge assessed plaintiffs residual
functional capacity as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work, with a sit/stand
option every 30 minutes while remaining on task, occasional
balancing, stooping, kneeling, crouching, crawling, and
climbing of ramps/stairs, no climbing of
ladders/ropes/scaffolds, frequent handling and fingering,
frequent exposure to pulmonary irritants, including fumes,
odors, dust, and gas, occasional exposure to hazardous
conditions, including unprotected heights and moving
machinery and occasional exposure to vibration. She is also
able to perform simple routine tasks with no interaction with
the general public.
(TR 22). Given such a residual functional capacity, and after
considering plaintiffs age, education, and prior work
experience, as well as testimony from a vocational expert,
the Law Judge found that Mrs. Viar retains sufficient
functional capacity to perform several specific light work
roles existing in significant number in the national economy.
(TR 31-32). The Law Judge identified potential jobs as a
small parts assembler, laundry folder, and inspector/ hand
packager. (TR 32). Accordingly, the Law Judge ultimately
concluded that Mrs. Viar is not disabled, and that she is not
entitled to benefits under either federal program. See
gen., 20 C.F.R. §§ 404.1520(g) and 416.920(g).
While plaintiff filed an administrative appeal, the Law
Judge's opinion was adopted as the final decision of the
Commissioner by the Social Security Administration's
Appeals Council. Having now exhausted all available
administrative remedies, Mrs. Viar has appealed to this
plaintiff may be disabled for certain forms of employment,
the crucial factual determination is whether plaintiff is
disabled for all forms of substantial gainful employment. See
42 U.S.C. §§ 423(d)(2) and 1382c(a). There are four
elements of proof which must be considered in making such an
analysis. These elements are summarized as follows: (1)
objective medical facts and clinical findings; (2) the
opinions and conclusions of treating physicians; (3)
subjective evidence of physical manifestations of
impairments, as described through a claimant's testimony;
and (4) the claimant's education, vocational history,
residual skills, and age. Vitek v. Finch, 438 F.2d
1157, 1159-60 (4th Cir. 1971); Underwood v.
Ribicoff. 298 F.2d 850, 851 (4th Cir. 1962).
review of the record in this case, the court is unable to
conclude that the Commissioner's final decision is
supported by substantial evidence. As for plaintiffs physical
problems, the court believes that the evidence supports the
Law Judge's determination that Mrs. Viar retains
sufficient functional capacity to perform light exertional
activities. In this respect, while Mrs. Viar has a history of
multiple musculoskeletal problems, several of her treating
physicians have noted no significant reduction in range of
motion, and no clinical findings of severe mechanical defect.
For the most part, Mrs. Viar's doctors have prescribed
conservative measures for pain control. In short, the court
finds that the medical record fully supports the Law
Judge's determination that plaintiffs physical problems
do not prevent performance of lighter work activities, as
long as plaintiff is given an option to sit or stand as
difficulty in this case concerns the Law Judge's
treatment of plaintiff s mental health issues. Mrs. Viar has
a history of psychiatric hospitalizations, and she has been
treated for depression and anxiety over a period of several
years. More recently, her family physician referred her to
Dr. Suzanna C. Jamison, a psychiatrist. Dr. Jamison saw Mrs.
Viar on three occasions in 2013. Dr. Jamison reported
symptoms of anxiety, depression, and panic attacks, though
the psychiatrist attributed much of plaintiffs difficulty to
situational issues. (TR 765, 781). On September 9, 2014, Dr.
Jamison completed a mental residual functional capacity
questionnaire. Stated succinctly, Dr. Jamison's findings
indicate that Mrs. Viar is unable to engage in any reasonable
work activity. (TR 816-20).
Administrative Law Judge ultimately concluded that plaintiffs
mental health problems are not so severe as to prevent
performance of simple, routine tasks with no interaction with
the general public. The Law Judge specifically determined to
accord Dr. Jamison's findings and opinions "little
weight, " noting that Dr. Jamison had only seen Mrs.
Viar on three occasions and that Dr. Jamison's clinical
findings were not consistent with her work-related
assessment. (TR 29). Instead, the Law Judge decided to accord
"great weight" to the report of a consultative
psychologist, Dr. David Leen. (TR29). Dr. Leen conducted a
clinical psychological evaluation in February 2013, several
weeks before Mrs. Viar was first seen by Dr. Jamison. Thus,
Dr. Leen did not have the opportunity to consider Dr.
Jamison's psychiatric findings and diagnoses. Remarkably,
while the Law Judge criticized Dr. Jamison's report
because the psychiatrist saw Mr. Viar on only three
occasions, Dr. Leen saw plaintiff only on a single occasion.
In any event, Dr. Leen ultimately diagnosed depressive
disorder and anxiety disorder. (TR 721). Dr. Leen opined that
plaintiff is capable of performing simple, repetitive work
activities in a timely and appropriate manner. (TR 721).
Administrative Law Judge also determined to give
"partial weight" to reports from several
nonexamining state agency physicians and psychologists. (TR
30). The record reveals that two state agency psychologists
completed record reviews. Dr. Richard Luck submitted a mental
residual functional capacity assessment on March 5, 2013. Dr.
Luck relied heavily on Dr. Leen's clinical findings. Dr.
Luck opined that while plaintiff experiences no limitations
in her ability to carry out short and simple instructions,
she is moderately limited in her capacity to discharge
detailed instructions and to maintain attention and
concentration for extended periods. (TR 68). Another state
agency psychologist, Dr. David Niemeier, submitted a mental
residual functional capacity assessment on November 1, 2013.
(TR 48-50). In contrast to Dr. Luck's assessment, Dr.
Niemeier noted a greater variety of work-related issues.
While Dr. Niemeier felt that Mrs. Viar possessed the ability
to carry out "very short and simple instructions, "
he noted moderate limitations in plaintiffs capacity to carry
out detailed instructions, maintain attention/concentration,
perform activities within a schedule, maintain regular
attendance and punctuality, and engage in an ordinary routine
without special supervision. (TR 49). Relying on the reports
from the state agency psychologists, the Administrative Law
Judge also found that Mrs. Viar experiences moderate
difficulties as a result of her emotional problems. The Law
Judge commented as follows:
With regard to concentration, persistence or pace, the
claimant has moderate difficulties. She is able to handle a
savings account and use a checkbook/money order, but has
difficulty following instructions, handling stress and
changes in a routine.
the court finds no real fault with the Law Judge's
assessment of the mental health evidence, the court believes
that the Law Judge erred in formulating a hypothetical
question for the vocational expert's consideration
without attempting to account for Mrs. Viar's moderate
difficulties in maintaining concentration, persistence, or
pace. Despite having found that plaintiff experiences severe
impairments on the bases of major depression and anxiety
disorder, and that these problems result in moderate
difficulties in maintaining concentration, persistence, or
pace, the Law Judge asked the vocational expert only to
consider that Mrs. Viar is limited to simple, routine tasks
involving little or no interaction with the general public.
(TR 1030). Stated differently, while the Law Judge included
some of the work-related limitations identified by the state
agency psychologists in the hypothetical, he omitted other
limitations which would seemingly affect the performance of
almost any work role. Thus, in opining that Mrs. Viar could
perform work as a small parts assembler, mail clerk, laundry
folder, and hospital products assembler, the vocational
expert was not asked to consider the significance of moderate
limitations in concentration, persistence, or pace in the
performance of such work roles as would seemingly require
sustained attention and concentration. Furthermore, assuming,
as did the Law Judge, the accuracy of Dr. Niemeier's
functional capacity assessment, the vocational expert was not
asked to consider the interplay of moderate limitations in
plaintiffs capacity to sustain an ordinary routine, perform